House Bill 293

AN ACT TO AMEND SECTION 43-47-5, MISSISSIPPI CODE OF 1972,
TO REVISE DEFINITIONS UNDER THE VULNERABLE ADULTS ACT TO REMOVE THE EXEMPTION
OF LICENSED NURSING HOME FROM THE DEFINITION OF "CARETAKER"; TO
CLARIFY THAT "VULNERABLE ADULTS" INCLUDE RESIDENTS OR PATIENTS IN
NURSING FACILITIES; TO CLARIFY THAT THE DEPARTMENT OF HUMAN SERVICES IS
AUTHORIZED TO EVALUATE AND PROVIDE PROTECTIVE SERVICES REGARDING ANY RESIDENT
OR PATIENT IN A NURSING FACILITY; AND FOR RELATED PURPOSES.

43-47-5. For the purposes of this chapter, the
following words shall have the meanings ascribed herein unless the context
otherwise requires:

(a) "Abuse" shall mean the willful or
nonaccidental infliction of physical pain, injury or mental anguish on a
vulnerable adult, the unreasonable confinement of a vulnerable adult, or the
willful deprivation by a caretaker of services which are necessary to maintain
the mental and physical health of a vulnerable adult. "Abuse" shall include sexual abuse. "Abuse" shall not mean conduct
which is a part of the treatment and care of, and in furtherance of the health
and safety of a patient or resident of a care facility. "Abuse" includes, but is not
limited to, a single incident.

(b) "Care facility" shall mean:

(i) Any institution or place for the aged or
infirm as defined in, and required to be licensed under, the provisions of
Section 43-11-1 et seq.; and

(ii) Any long-term care facility as defined in
Section 43-7-55; and

(iii) Any hospital as defined in, and required to
be licensed under, the provisions of Section 41-9-1 et seq.; and

(iv) Any home health agency as defined in, and
required to be licensed under, the provisions of Section 41-71-1 et seq.; and

(v) Any hospice as defined in, and required to
be licensed under, the provisions of Chapter 85 of Title 41; and

(vi) Any adult day services facility, which shall
mean a community-based group program for adults designed to meet the needs of
adults with impairments through individual plans of care, which are structured,
comprehensive, planned, nonresidential programs providing a variety of health,
social and related support services in a protective setting, enabling
participants to live in the community.
Exempted from this definition shall be any program licensed and
certified by the Mississippi Department of Mental Health and any adult day services
program provided to ten (10) or fewer individuals by a licensed institution for
the aged or infirm.

(c) "Caretaker" shall mean an
individual, corporation, partnership or other organization which has assumed
the responsibility for the care of a vulnerable adult, but shall not include the
Division of Medicaid or a licensed hospital * * * within the state.

(d) "Court" shall mean the chancery
court of the county in which the vulnerable adult resides or is located.

(e) "Department" shall mean the
Department of Human Services.

(f) "Emergency" shall mean a situation
in which:

(i) A vulnerable adult is in substantial danger
of serious harm, death or irreparable harm if protective services are not
provided immediately;

(ii) The vulnerable adult is unable to consent to
services;

(iii)
No responsible, able or willing caretaker, if any, is available to
consent to emergency services; and

(iv) There is insufficient time to utilize the
procedure provided in Section 43-47-13.

(g) "Emergency services" shall mean
those services necessary to maintain a vulnerable adult's vital functions and
without which there is reasonable belief that the vulnerable adult would suffer
irreparable harm or death, and may include taking physical custody of the
adult.

(h) "Essential services" shall mean
those social work, medical, psychiatric or legal services necessary to
safeguard a vulnerable adult's rights and resources and to maintain the
physical or mental well-being of the person.
These services shall include, but not be limited to, the provision of
medical care for physical and mental health needs, assistance in personal
hygiene, food, clothing, adequately heated and ventilated shelter, protection
from health and safety hazards, protection from physical mistreatment and
protection from exploitation. The words
"essential services" shall not include taking a vulnerable adult into
physical custody without his consent except as provided for in Section 43-47-15
and as otherwise provided by the general laws of the state.

(i) "Exploitation" shall mean the
illegal or improper use of a vulnerable adult or his resources for another's
profit or advantage with or without the consent of the vulnerable adult. "Exploitation" includes, but is
not limited to, a single incident.

(j) "Lacks the capacity to consent"
shall mean that a vulnerable adult, because of physical or mental incapacity,
lacks sufficient understanding or capacity to make or communicate responsible
decisions concerning his person, including, but not limited to, provisions for
health care, food, clothing or shelter. This may be reasonably determined by
the department in emergency situations; in all other instances, the court shall
make the determination following the procedures in Sections 43-47-13 and 43-47-15
or as otherwise provided by the general laws of the state.

(k) "Neglect" shall mean either the
inability of a vulnerable adult who is living alone to provide for himself the
food, clothing, shelter, health care or other services which are necessary to
maintain his mental and physical health, or failure of a caretaker to supply
the vulnerable adult with the food, clothing, shelter, health care, supervision
or other services which a reasonably prudent person would do to maintain the
vulnerable adult's mental and physical health.
"Neglect" includes, but is not limited to, a single incident.

(l) "Protective services" shall mean
services provided by the state or other government or private organizations,
agencies or individuals which are necessary to protect a vulnerable adult from
abuse, neglect or exploitation. They
shall include, but not be limited to, investigation, evaluation of the need for
services and provision of essential services on behalf of a vulnerable adult.

(m)
"Vulnerable adult" shall mean a person eighteen (18) years of
age or older or any minor whose ability to perform the normal activities of
daily living or to provide for his or her own care or protection is impaired
due to a mental, emotional, physical or developmental disability or
dysfunction, or brain damage or the infirmities of aging. The term "vulnerable adult" shall
also include all residents or patients, regardless of age, in a care facility,
other than a licensed nursing facility, for the purposes of Sections 43-47-19
and 43-47-37 only; however, "vulnerable adult" shall include all
residents or patients in a nursing facility for all purposes under this chapter. The department shall not be prohibited from
investigating, and shall have the authority and responsibility to fully
investigate, in accordance with the provisions of this chapter, any allegation
of abuse, neglect, and/or exploitation regarding a patient in a care facility,
if the alleged abuse, neglect and/or exploitation occurred at a private
residence. The Department of Human
Services is fully authorized to perform any investigation, evaluation or
examination or provide protective services, essential services or emergency
services regarding any resident or patient in a nursing facility.

SECTION
2. This act shall take effect and
be in force from and after July 1, 2003.